May a judge join the board of a charitable foundation funded partly by a case the judge mediated?

Plain-English summary

The judge had mediated litigation whose settlement provided part of the new foundation's funding. All litigants supported the judge's board service. The judge said the foundation was not expected to appear in proceedings covered by Rule 21-500's organizational-service limits or to conduct fundraising or membership solicitation that would involve the judge. Source: Opinion 02-09, p. 1

The committee also considered the duties to preserve judicial independence and public confidence and to avoid lending judicial prestige to private interests. Because the mediation was over and the foundation's work was unrelated to litigation, it found no improper appearance in the proposed board membership. Source: Opinion 02-09, pp. 1–2

In practice

The opinion's permission rests on the completed litigation, the foundation's separate activities, and the stated absence of proceedings and fundraising that would trigger the cited Code restrictions. Source: Opinion 02-09, pp. 1–2

Common questions

Q: Did the judge's earlier mediation automatically bar board service?

A: No. The committee considered that connection but found no improper appearance because the case was complete and the foundation's work was not litigation-related. Source: Opinion 02-09, pp. 1–2

Q: Did the opinion authorize the judge to raise funds for the foundation?

A: No. It cited Rule 21-500's fundraising restriction and relied on the requester's statement that such activity was not anticipated. Source: Opinion 02-09, p. 1

Background and rules framework

The committee applied then-current New Mexico Code of Judicial Conduct Rules 21-500, 21-100, and 21-200 to nonprofit board service and the appearance created by the judge's mediation role. Source: Opinion 02-09, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-500, 21-100, and 21-200. Source: Opinion 02-09, pp. 1–2

See also

• NM Judicial Op. 02-06: Civic Boards
• NM Judicial Op. 16-01: Charity Concert

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 02-09

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen, Jr., Chairman
Hon. James J. Wechsler

October 8, 2002

Re: Judicial Advisory Opinion No. 02-09

Dear

You have asked the Advisory Committee on the Code of Judicial Conduct for an opinion concerning your ability to serve on the Board of Directors of a charitable foundation. The foundation is being funded, at least in part, as the result of a settlement reached through mediation in a case in which you were appointed by the trial judge to be the mediator. As part of the settlement, the defendant agreed to provide a large amount of the initial funds for the foundation. All parties to the litigation support your serving as a member of the Board of Directors.

Rule 21-500(C) (3) NMRA 2002 permits a judge to serve as a director of a non-profit, charitable organization if it is not likely that the organization will be engaged in proceedings that would ordinarily come before the judge and will not frequently be engaged in adversary proceedings in the court of which the judge is a member or a court subject to the appellate jurisdiction of the judge's court. Rule 21-500(C)(3)(a). You have advised that these prohibitions are not applicable to this foundation. In addition, Rule 21-500(C) (3) precludes a judge from personally participating in fund-raising activities and certain membership solicitation of a charitable organization. You have advised that it is not anticipated that this foundation will be required to engage in these activities.

Under the Code of Judicial Conduct, a judge has the obligation to maintain high standards of conduct in order to preserve the integrity and independence of the judiciary. Rule 21-100 NMRA 2002. Further, a judge has the responsibility to promote the public confidence in the integrity and impartiality of the judiciary and may not lend the prestige of judicial office to advance the private interest of others. Rule 21-200(A), (B) NMRA 2002. From the facts you have described, although the genesis of the foundation was in the litigation-related mediation, the litigation is completed and the activity of the foundation is not related to litigation. As a result, the Committee does not believe that there is an improper appearance involved in your service as a member of the Board.

In the opinion of the Committee, the Code of Judicial Conduct does not preclude you from serving as a member of the Board of Directors of the foundation.

Very truly yours,

Frank H. Allen, Jr.
Chairperson
Judicial Advisory Committee

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